The Queen v Cho

IN THE COUNTY COURT OF VICTORIA

Revised

AT MELBOURNE
CRIMINAL JURISDICTION
CR-15-00127
CR-15-00128

THE QUEEN

ICETOTO PTY LTD

and

MUN JOO CHO

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATES OF HEARING:	11 November 2015
DATE OF SENTENCE:	20 November 2015
CASE MAY BE CITED AS:	The Queen v Cho
MEDIUM NEUTRAL CITATION:	[2015] VCC 1697

REASONS FOR SENTENCE
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Catchwords: Aiding, abetting, counselling or procuring aggravated illegal importation
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F Thompson	Commonwealth Director of Public Prosecutions
For the Offender	Mr Dunn QC and Ms A Kapitaniak (at plea) Mr S Lee (at sentence)	Spencer Reynar Law Office

HIS HONOUR:
1Mun Joo Cho, you have personally pleaded guilty to six charges of aiding, abetting, counselling or procuring the aggravated illegal importation of various items in breach of Section 67 (3) of the Quarantine Act 1908. The basis of your liability is set out in Section 11.2 of the Criminal Code. You were also the sole Director, Secretary and 100% shareholder of a company being the first named defendant ICETOTO PTY LTD (“Icetoto” or “the company”) and pleaded guilty on the company’s behalf to the six aggravated illegal importations under the same provision of the Quarantine Act 1908.
2The offences committed by the company are punishable by a maximum fine of 10,000 penalty units, that is, $1.1 million dollars for each offence. The cost of a penalty unit has gone up significantly since the offending, but the relevant penalty unit is that existing at the time the offence was committed which was $110.00. For the offences which you have committed personally, the maximum penalty is a term of 10 years imprisonment, or a fine of up to 2000 units ($220,000) or both.
3You were born on 16 January 1965. You are 50 years of age and have no relevant prior criminal history. The company has no prior appearances. You are married and you have two young children.
4
This matter was opened to me on 11 November by the prosecutor

Ms Thompson, in accordance with the detailed 15 page written plea opening. That plea opening was marked as Exhibit A. It has a schedule attached to it which sets out the weight of the prohibited items brought into the country, as well as a chronology. About 15 tonnes were brought in and well over 10 tonnes cleared customs. The filed written outline authored by your previous barrister Mr Georgiou SC, was adopted by Mr Dunn QC. That outline indicated that the summary was largely accepted. In fact, I do not recall

Mr Dunn taking any issue with any aspect of the summary. So I will incorporate the prosecution summary of opening into my reasons. I see no need in those circumstances to fully recite the facts in my reasons for sentence.
5This country had, at the time of your offending, strict restrictions on the importation of meat and food items containing meat from Korea. Unprocessed meat was prohibited. In some circumstances, processed meats could be brought into this country subject to proof of disease free animals being utilised as well as certain processing requirements being met. But that was subject to an import permit being granted, which would require proof of those matters. Without it, there was a ban on importing products containing meat. Neither you nor your company had any import permits.
6In December 2010, a random import clearance inspection up in Brisbane turned up some worrying meat imports coming in from Korea. There was at that point an outbreak of foot and mouth disease in Korea, as well as avian influenza, hence the understandable concern. The discovery prompted a National investigation into unlawful importations of, and onward distribution for retail sale of prohibited food items from Korea. It turned up a disturbingly large number of illegal consignments with items seized both in containers and after distribution. A number of companies and individuals were charged and have been convicted. You were one of those caught up in this investigation. Many of the others similarly caught out are referred to in the selection of cases provided to me.
7You and the company are charged in relation to the six occasions between September 2010 and February 2011, where prohibited goods containing meat were brought into the country. They were brought into the country in circumstances where the company obtained, or was likely to obtain a commercial advantage over its competitors. Documents supplied by you, on behalf of the company to your customs broker, and then innocently lodged by that broker deliberately disguised the true nature of the products being imported, generally identifying fish or fish cake and removing any reference to meat or chicken.
8The summary sets out the large quantities of products brought into Australia in this way. As a result of the false information unknowingly lodged by your customs broker, a number of the consignments cleared Customs, and obviously enough have found their way out into the marketplace. Over 10 tonnes cleared customs.
9You appointed a new Customs broker after the fifth importation, as the earlier broker chose to cease to act, due to repeated issues with non-declaration and mis-declaration. That new Customs broker was then also provided with deficient and incomplete information as to the next consignment. By this stage, the company was flagged for inspection, and yet again there was meat product discovered. The total weights and costs of the illegally imported meat products are set out in a schedule attached to the opening. It was a touch over 15,000 kilograms and with a cost of just over $75,000.
10A warrant was executed at the company premises on 12 May 2011. Some items were seized from your freezer. Samples were taken and later analysed and demonstrated various meat items. Tax invoices were seized which disclosed the sale of products to various grocery shops in Melbourne. One such business was Korean Kimchi. They began ordering goods from your company in about 2009, as you were offering meat dumplings that were requested by customers. Their other supplier did not provide such a product. Documents were seized from you, as well as computer records, and they disclosed that you had possession of documents from the Korean manufacturer, correctly describing meat products. They can be compared with the documents you provided onto the Customs broker where any reference to meat was removed.
11You were interviewed on 16 May 2011 and made a number of admissions. Whilst accepting as I do that there was a language issue, it was still a strange interview in that you from time to time, seemingly went back on earlier full admissions. However, you answered all questions put to you and made a series of very damaging admissions explaining that a declaration of fish cake was made because to have truly declared the meat product would have led to interception. You said you were hiding the true contents; you knew that you could not lawfully import meat products. It was done to compete with other businesses.
12These restrictions on the importation of meat products are no joke. They are deadly serious. Breaches may jeopardise primary industry in this country and for that matter, many other industries both upstream and downstream from primary industry. We have the very good fortune to live on a mass of land surrounded by water. We are isolated from other countries. That provides the benefit of isolation from many serious diseases that thrive elsewhere in the world. As a result, we in Australia, have been most fortunate to have avoided outbreaks of diseases that have ravaged other parts of the world.
13Of course it is not just luck. It is not a status merely automatically flowing from our isolation. It is both the good fortune of our geographic location, as well as a rigid approach to banning products that may jeopardise our disease free status. Very active risk assessments are engaged in. Screenings are carried out to detect things that should not come in. However, not every container can be intimately examined. The authorities rely also on compliance by those importing products. The hope is that people and companies will put the interests of this country ahead of their own commercial interests and so avoid exposing the country to the potential threat of these serious diseases. You did not.
14This was serious offending. The potential consequences of the conduct was very serious. It was committed for commercial gain. That is why it is charged as the aggravated offence.
15There is much material attached to the depositions spelling out the reasons for our laws and the risks posed by diseases, such as foot and mouth disease, Newcastle disease and avian influenza. One hardly needs it. The images of mass destructions of livestock herds and bird flocks in other countries is not an easy image to forget. Of course it goes much further than that as the material makes clear.
16At the time you imported the meat products containing pork and chicken, there was an outbreak of foot and mouth disease as well as avian influenza on the Korean peninsula. The likelihood of the foot and mouth virus being present in pig meat is high and the disease can be transmitted to other animals by infected meat and meat products. The costs to industry in this country in the event of an outbreak could be horrendous. So too Newcastle disease and avian influenza. Whole industries and large portions of rural communities were potentially threatened by this purely commercial decision you have taken. Now of course it is apparent that happily there has been no introduction of any of these diseases as a result of your conduct. But, the potential was there.
17This was serious offending indeed spanning six consignments, and in a setting where a very large amount of potentially infected product passed out of your and the company’s control, and into the hands of those who may have no conception at all of the possible risks posed by the products. Enough then of my brief summary of the summary in this matter.
The plea
18Your counsel Mr Dunn QC relied upon a number of matters in mitigation. Principally he relied upon:

· Your early guilty plea and the benefits flowing from it;

· Your facilitation of the course of justice including participation in the interview,

· The presence of remorse;

· The delay in this case, most significantly, the delay between your interview and being charged and until now, the finalisation of the matter. In these periods, you have remained out of trouble, have continued running the company and were now fully compliant with your obligations. You had in the interim been greatly worried by your position in terms of having the matter suspended over your head, and also as to the risk of deportation;

· He relied upon your age and background and absence of any relevant prior criminal history;

· He argued that you had very good prospects of rehabilitation;

· He relied upon a report from a psychologist Ms Matthews, a brief medical report relating to your wife, some financial materials as well as a number of character references;

· Though not suggesting that the circumstances were exceptional such as to allow recognition of any third party hardship, he pointed to your predicament if sent to prison for the first time aged 50 ,with concerns about the position of your wife and children, your business and your immigration status and argued that these matters would be such as to increase your custodial burden.

· Your counsel conceded the seriousness of the offending, but made some submissions as to the character of the offending, your reasons for committing the offences and your lack of full awareness of the true risks of such conduct. He accepted that a term of imprisonment was appropriate in relation to the charges you faced, but argued in favour of your being released immediately on a recognisance release order. He argued that that outcome was open as a result of the very lengthy delay. The company should be fined, he argued.

Prosecution

19The prosecution placed before me some detailed written submissions. I had them marked as Exhibit B. Many of the submissions contained within that document were uncontentious. However, one matter was, in my view, contentious and clearly ran counter to matters raised in mitigation on your behalf. Namely the utilitarian benefit of the guilty plea.
20The prosecution suggestion seems to be that a guilty plea is only to be met with a discount, if the court is satisfied that it demonstrates genuine remorse, acceptance of responsibility or a willingness to facilitate the course of justice. If not, it has no value. Further, that none of those concepts would embrace the sparing of the expense and effort associated with the running of a trial. As to the savings to witnesses, Ms Thompson who appeared for the Director said they may be picked up by the concept of facilitation of the course of justice.
21Essentially it was being argued that the savings of time and effort were not proper matters to feed in to any discount and that that there was no such thing in the Federal domain as the utilitarian benefits associated with a guilty plea as exist in the State sentencing regime. If that is all so, then it comes as news to me. I simply do not accept those propositions.
22The High Court case of Cameron was cited. Firstly, that case has nothing at all to say about the operation of Section 16A of the Crimes Act. It was not even concerned with that provision. Only one of the Justices of the High Court even mentioned that provision and in a very fleeting manner. Further, in my reading of the case, Cameron does not even fully support the Director’s argument as to the suggested limits to the reward for a guilty plea. The Director’s contended limitations upon the reward for a guilty plea based on the decision of Cameron were firmly and I believe, correctly rejected by the NSW Court of Appeal in the case of DPP v GOW 2015 NSWCCA 208, which is a highly persuasive and recent authority.
23This is the third time in a little over three weeks that such a submission has been made to me and rejected by me. I will keep rejecting it until the Court of Appeal of this State instructs me otherwise. I understand that the Director is taking a matter to the Court of Appeal and it cannot come soon enough.
24The last time I had someone making these submissions on behalf of the Director, and it was only a week before the plea. In this matter, I was encouraged by the prosecution to recognise the fact of the guilty plea and the early stage at which it was entered. Section 16A of the Crimes Act is silent as to the significance of the stage of the plea. I asked that prosecutor what the significance of the stage of the plea was, if there were no utilitarian benefits to be recognised and she relied upon common law principles being picked up. What common law principles?
25Well it seemed to me in that case that we had come full circle, even on the Director's analysis, back, if not to the utilitarian benefits being recognised, to at least a discount recognising the same matters and of the same value. Either the Court can actually recognise the utilitarian benefits in a way not actually prohibited by Cameron, or they are picked up by the common law, or the utilitarian benefits are otherwise embraced by the concept of willingness to facilitate of the course of justice. It does not matter which, either way, they are surely to be recognised and they will be by me, at least until I am directed otherwise.
26I have expressed my concern as to this sentencing submission being made. Before the last month or so, it has not to my knowledge been made previously to Judges sitting in this court. I note there is some reference to it in the Federal Sentencing guide previously authored by Mr Pedley.
27However, the exact opposite to the supposed Cameron proposition has been raised on behalf of the Commonwealth Director and accepted in this court time and time again. I think it is semantics. There has always been a tension between principle and pragmatism. The High Court recognised the subtlety of the distinction between a utilitarian benefit and the willingness to facilitate the course of justice, but were keen to avoid an approach that may be seen to punish someone who exercised their rights and ran a trial. Ultimately, the label is probably unimportant. The value of the benefit though is not. Anyway, yet again I reject the submission.
28I return then to the submissions which in many areas were not in dispute. They spelt out the seriousness of the offending involving as it did, the six consignments and the large quantities of prohibited items. The risk of disease was increased the larger the amount of goods brought in and the wider the area they were distributed. I should say that I am not prepared to reach a finding beyond reasonable doubt as to the placement of actual orders after you had become aware of interceptions. So I will not proceed on the strength of Paragraph 8 of the prosecution outline, or that portion of Paragraph 16 asserting knowledge of interception.
29Anyway these are not major matters. Far more significant was the scale, the seriousness of the risk, the deliberate nature of the actual conduct and the high need to reflect general deterrence. The fact is you knew what you were doing was quite wrong and the seriousness of what you were doing does not hinge on whether you were awake to an examination of any of the particular consignments or not. You, and the company, kept trying to bring in goods that had no business coming in to this country, a fact you well knew. It is why the true descriptions were disguised.
30The Crown submissions went to the various specific matters listed in Section 16A, sub-s. 2 of the Crimes Act. Again, I just do not think it is necessary for me to set out all of those submissions. The Crown accepted that delay formed a powerful mitigatory consideration here, but still called for an immediate prison term in all of the circumstances. I was provided with some case summaries marked as Exhibit C.
31I was provided also with many of the actual decisions. None of those cases were on all fours. There are certainly a number of comparable cases in terms of conduct and scale which have been met with immediate terms of imprisonment. What is lacking in many of the cases is the sizeable delay present in this case. However, some of those cases had other very powerful factors at play, including significant assistance and cooperation. There are a couple of cases where the delay is comparable and the accused avoided an immediate term, but in a setting where the conduct committed by those other offenders was not nearly as serious.
Background
32Your personal background was placed before me in some detail in the oral submissions of Mr Dunn. It was also covered in detail in the chronology and written outline marked as Exhibit 1, as well as in the report of Ms Mathews. I see no need to restate it in full, as I have no reason to doubt what I was told of your personal and family background.
33You are now 50 years old. You have only one prior traffic appearance before the courts and it is of no relevance at all to my task. I put it aside altogether. The company has no prior convictions.
34You were born in South Korea and brought up in a stable family. You were one of two boys, but your younger brother was disabled. You described family life as pretty good, though there had been a bit of pressure to succeed as the oldest son. Your parents' generation growing up in that region had very little and they wanted their own children to study and thrive and to succeed professionally.

35Your parents are still living in South Korea. You were educated to a high level completing a science degree. With the blessing of your family, you migrated to Australia in 1989 with your wife and did a degree at University in Sydney. You commenced an ice cream manufacturing business in Sydney in 1997, but moved with your family to Melbourne in 2005. The business continued. You are a married man with two children. You purchased a house in Melbourne for a touch over a million dollars, but borrowed most of that sum. That house was sold in 2010 to invest into the business.
36It seems apparent from the spate of illegal consignments intercepted not just in your case, but many others, that the sort of conduct you were involved in was not uncommon. No doubt to get ahead in business and to provide products desired by Koreans living in this country, you committed these serious crimes. So for commercial gain. It came unstuck in early 2011. You lost that last consignment as well as much of the fifth consignment.
37You cooperated with the police and made admissions. That was in May 2011. Then nothing happened until you were charged in September 2014. That delay is entirely inappropriate and not greatly explained by the prosecutor. It is inexplicable and most regrettable. But for that delay, your counsel intimated that he would be conceding the inevitability of an immediate term of imprisonment.
38You have maintained the business, but are not in great financial shape personally as the materials attest. No information has been placed before me as to the financial state of the company, but I note that a new director came on board in July of 2013. You have been worried by the matter remaining outstanding for so long. It has clearly impacted on you and no doubt your wife as well. The sword has been over your head figuratively for many years, many years longer than it should have been. There are no further instances of offending in the interim. I will return to some of these matters when I come to consider the delay here.
Guilty plea
39I turn then to consider the matters which have been raised in mitigation both for you and the company. You and the company have pleaded guilty to this charge and at a very early stage. I must reward you for facilitating the course of justice. You cooperated with the police to a degree on the day of your arrest. Your and the companies plea of guilty has to be seen in light of the fact that a number of the importations had cleared Customs.
40The authorities did not have the actual product to examine. You made admissions and have pleaded guilty in such a setting, in circumstances where there was no inspection of the consignments. Now I am not saying it was a hopeless Crown case, far from it. The prosecution had in some instances documents spelling out the true nature of the products. They had items seized from later shipments that tended to identify the products imported in the earlier cleared consignments.
41The fact is though, you have admitted your guilt and at a very early stage and in a setting where you could have chanced your arm at trial, given the vacuum in the direct evidence, and the inability of the authorities to forensically test much of the product that cleared Customs. You did not. You have not sought to challenge the interview. You have greatly facilitated the course of justice. You have taken responsibility for the offending. You have admitted your guilt. You did not need to do any of these things.
42As a result of your early guilty plea, witnesses have been spared the need of coming to court. This would have been quite a complex trial. A circumstantial case in part with some scientific evidence. The community has been spared the time, cost and effort associated with the conduct of a contested criminal hearing either in this court or in the Magistrates' Court. Whether labelled as the utilitarian benefit, or the facilitation of the course of justice, the effect is the same and the benefit equal as between those two concepts however they are labelled.
43I take into account by way of mitigation the extent of your cooperation and your early guilty plea and I reward you for facilitating the course of justice. I believe that there must be a utilitarian benefit in pleading guilty, but even if the Director is right and I am quite wrong, the discounts that I would recognise as utilitarian benefits would be picked up very comfortably by the concepts of contrition and facilitation of the course of justice on a subjective analysis here. I want to make plain to you that I would certainly have imposed a more significant sentence upon you, had you been found guilty following a contested trial.
Contrition/ remorse
44You have pleaded guilty and at a very early opportunity.
45Now there were some matters mentioned in some of the personal references and the report of Ms Matthews, that caused me to have some concern as to the extent of your remorse. I would not expect that you would have had a full understanding of the potential consequences of some of the diseases referred to in the summary taking hold in this country. So I accept that you probably did not think it was as serious a matter as it undoubtedly was. However, there was material in the report of Ms Matthews speaking of inadvertence, of contamination by meat product. That and your endeavouring to qualify some of the admissions you had made to the police.
46Sensibly, Mr Dunn did not highlight any of that detail on the plea, as it was inconsistent with the summary and what you had actually done. This was not a question of inadvertence or your being some unwitting person bringing in product which unbeknown to you had meat. You were deliberately mis-describing the ingredients. A few of the references state the opinion that you would not have conducted the business without care for the proper procedures with Quarantine regulation laws in Australia. Whatever you may have told these people, that is exactly what you were doing. You may well have been doing what many other importers were doing, but you knew that what you were doing was wrong. It was not a matter of some inadvertent conduct.
47However, there is also the mention in some of the written references and the report of Ms Matthews to the presence of remorse. I have your early guilty plea which is very often indicative of some remorse. Ultimately, I am prepared to find that you are to a degree, remorseful and contrite here.
Delay
48I turn to the delay in this case. You were 45 years old when the offending commenced in September 2010, 46 when it finished in February 2011, still 46 years old when you made admissions upon interview in May 2011. Then the wait began. Would you be charged or not? What would happen to you if charged? You waited until September 2014 to learn if you would be charged. Charges were laid. Then the matter has settled reasonably swiftly in the Magistrates' Court and came to this court.
49Once charged, it should have been finalised on 24 March of this year, when it was first listed for plea. There have been three false starts in this court. The first on that March date produced by a defence adjournment application to get a psychologists report and because of funding issues. One in May because of the outstanding Court of Appeal case of Antanakovic and finally, a further defence application on 19 August to get character references.
50You are now 50. The delay on any view of it is most unfortunate and the lion’s share of it was totally out of your control. Such explanations as have been proffered by the prosecution do not come close to explaining why there was a period of over three years, following your admissions in May 2011 until charges were actually laid in September 2014. In the period of that delay, you have no doubt lived with the nagging thought of the potential prosecution and its possible outcome in court. That is in itself a penalty, as it is none too easy to order your life when you have little idea of what lies ahead.
51Would you be charged and if charged, would you go to prison? You did not know, but you surely would have known of the outcome in some of the other cases. Then you were charged in September 2014 and these feelings would have intensified. You would have also thought of the prospect of deportation as well, perhaps more so since the day of the plea, when it was discussed in some detail.
52Let me just say that the delay here is totally unacceptable. Now I have set out in these reasons some explanations of the later period of delay once you were charged. The Court of Appeal has made plain that it is generally unprofitable to conduct an audit of the reasons for a delay. That is because generally what is important is the effect which the lapse of time has had on the accused, not who is to blame for the delay.
53However, there are still some instances where there is some utility in dissecting the reasons for delay. That is because there is the ability to take into account the extent of unfairness posed by a delay, and an accused who has had some control over the length of delay or even is driving it, surely cannot be in the same position as another who is hostage to the actions of others. This is not a case where it is profitable to look at the delay in any more detail than has been placed before me. It is inordinate. It does not have to be for me to pay regard to it, but it is, inordinate. The significant delay between interview in May 2011 and your being charged in September 2014 is unfair to you. Throughout the entire delay to this point, you have stayed out of trouble.
54Now each case must be determined on its own facts. Some delays are insignificant or of very little mitigatory value. There are some cases where delay is easily explained by virtue of foolish decisions taken by an accused man, absconding for instance. Or understandable by virtue of the complexity and scale of the investigation. Sometimes the delay is not of much use to an accused. Some accused commit crimes in the interim period and so delay in terms of the claim of ongoing rehabilitation falls very flat indeed.
55If you had been charged four years ago and absconded and only recently been captured and brought before the court, well very little weight could be given to the matter being outstanding for so long. But even in such a case as that, I would still need to consider your positive progress in the interim. Here though, the delay is inordinate and was totally out of your control for some years. You had not even been charged until September 2014. Such explanations as have been given do not really explain that actual delay here as the prosecutor concedes and they come nowhere near justifying the delay. The prosecution accept it is a powerful mitigatory factor. They are right.
56It has worked in unfairness. You did not abscond. You had not even been charged. You cooperated to a degree with the authorities and made admissions in May 2011. Then nothing happened for years. It has had an effect on you, as the submissions of counsel and the psychologist’s report makes plain and you have remained out of trouble in the meantime. In the meantime, there have been serious changes to the Migration Act tightening up cancellation of visas as I will discuss shortly.
57I take the view that delay here is a powerful factor. It is an extraordinary delay, perhaps not as extraordinary as some of the examples referred to in the cases, but extraordinary none the less. It must work in your favour in my judgment. That is because you are to a significant degree rehabilitated. You have lived with the dark shadow of this day hovering above your head for years and for no good reason that I can determine. You are before me for crimes that have been allowed to grow relatively stale and you have not greatly contributed to that delay, certainly not at all until you were charged.
58I take into account the many decisions dealing with delay including but not limited to Schwabegger, Merrett and Piggott, Todd, Miceli and Arthars v R. The sort of delay in this case demands some considerable measure of understanding and a flexibility of approach. It permits a reduction in the weight to be given to some sentencing purposes that in the absence of such a delay would usually need to be more heavily emphasised.
59It is a great shame that the prosecution submissions as to the seriousness of the crime were not backed up by the authorities proceeding more swiftly in the laying of charges. There is a jarring inconsistency in the prosecution pointing to the undoubted seriousness of the offending, in a setting where there has been such a leisurely approach adopted to the laying of charges. Now I am not levelling blame at the Director of Public Prosecutions. It is obvious that once charged in September 2014, the matter could and should have been finalised by the end of March of this year. However, speaking now of the earlier period leading up to September 2014, somewhere along the way, in the course of the investigation stage, things have serious miscarried to lead to such a delay. Very simply, you must benefit from it. However, it is not the only matter that I have to consider. I give it real weight, but must still pay regard to other matters, including the seriousness of the offending.
Rehabilitation
60I turn to your prospects of rehabilitation, but have already touched upon this concept when dealing with delay. I have the four and a half year period since you were interviewed to scrutinise your behaviour. You have not put a foot wrong and have continued to lead a law abiding life under the stress posed by such a matter as this being outstanding. You are 50 years old and with no past relevant offending, and nothing since these offences were committed many years ago. You are a married man, you were educated to a high level and have two children, one a 14 year old boy, the other an 11 year old girl. You are a family man and it is obvious enough that the offending was committed to get some sort of financial boost. You describe the difficulties the business was in. That is a context, but no excuse.
61The process of being arrested, interviewed then charged many years later and brought before the court, has been a sobering and worrying experience for you. You have a supportive wife and have greatly worried about your own and her predicament. She has also been affected though. There are limits to the weight I can give to impact upon her as I will soon explain. I believe all of these matters are likely to deter you from further offending. That they probably have already deterred you.
62I am prepared to accept your counsel’s submissions as to your prospects. I judge your prospects to be very good indeed and I believe you have a very low risk of reoffending in this way again. You are already a fair way along the path to rehabilitation.
Increased Burden
63You are a 50 year old man with no past experience of prison or prisoners and still some limits to your English. I have no doubt that it would be difficult for you being sent to prison. You would also be worried as to the predicament of your family financially and in other ways and the ability for the business to be maintained.
64Only in exceptional circumstances can a court take third party or family hardship into account. The circumstances must be such that they rise above the general and sometimes serious hardship, commonly suffered by families upon the imprisonment of a family member. Your counsel was not suggesting that the circumstances were exceptional. They are not. There is nothing unusual about significant emotional and financial stresses flowing from the imprisonment of an individual. Very often, the court is required to imprison the sole breadwinner or someone who is in some way or other very heavily depended upon by others. I accept that life would be tough for your wife and children in your absence. I do not doubt that, but cannot have regard to that fact.
65You on the other hand would be imprisoned and know of the very uncertain predicament for your wife and your children. You would not be able to assist her or them financially or by the provision of any support. You would worry about the family and the family business and its survival. They are intertwined. These various matters would undoubtedly increase any burden of custody upon you. It is permissible to take them into account in that way, even in the absence of exceptional circumstances. Prison would be harder for you as a result of these factors and I take that into account.
Ms Matthews
66The report of Ms Matthews is relied upon as evidencing your remorse and more significantly, spelling out the absence of many of the factors which would normally impede a person’s rehabilitation. No alcohol or drug issues lurk in your past, no personality disorders or mental health issues which will interfere with your progress. There is probably something in your background and make up that has you respond to the pressure to succeed. The collapse of your business would have been a matter of great shame to you, as indeed are your current reduced circumstances. Mr Dunn told me that the report was not relied upon as in any way reducing your moral culpability for the offending. Now very little is made of the depression or mixed disorder spoken of in the report, other than of course demonstrating the impact upon you in the period of delay which I have already taken into account.
67Mr Dunn waxed and waned on this next issue, but ultimately said that he was not relying upon the report to attract the fifth principle from a case of Verdins or for that matter any of the other principles from that case. I can well understand his lack of enthusiasm for any reliance on that case of Verdins given the fact that the appointment with Matthews was conducted without an interpreter, but with use of a phone translation ‘App’ and in circumstances where you avoided any attempt to discuss your past or current mental state. Anyway your counsel does not seriously suggest Verdins is engaged here. I do not believe it is. I have already allowed for an increased custodial burden courtesy of your age, lack of criminal experience and absence from your family and worry for their position and concerns as to your own immigration status which I now move to discuss.
Deportation
68Your counsel relies upon the risk of deportation by way of mitigation here. You are a permanent resident and if sentenced to a term of 12 months or more, and to an outcome that produces a full time sentence for an offence against the Commonwealth, the Minister must cancel your visa. That is because he must do so, if you do not pass the character test. This follows from the amendments made late last year to the provisions of the Migration Act. Amendments that would not have existed had this matter been dealt with when it should have been in 2012 or 2013.
69So the preconditions to automatic revocation are a sentence of 12 months or more, and the prisoner serving a sentence of imprisonment in full time custody. It is not clear to me whether the provision only comes into play if there is a full time sentence of 12 months or more, or whether it would apply in the setting of a sentence of 12 months or more with a recognisance release order permitting release before the service of 12 months. I believe the latter.
70The Court of Appeal considered the provision in a broad manner in the case of Zhuang, but I do not believe they answered this issue or many others. I am not being critical of them as it was not necessary for the purposes of their decision in that case, to comprehensively interpret the provisions. They turned relatively briefly to this area and without the benefit of full argument and with the greatest of respect, I suspect they have misinterpreted some aspects of the provisions.

71Paragraph 54 of that decision sets out the claimed impact of the provision and the Court of Appeal stated that the section required the Minister to cancel a visa, if the visa holder is serving a sentence of imprisonment on a full time basis or if the person has been sentenced to a term of imprisonment of 12 months or more. On my reading of the provision, both of those conditions must be satisfied for cancellation under Section 501(3)(A).
72A person with a ‘substantial criminal record’ fails the character test and must have their visa cancelled if they are serving a sentence of imprisonment on a full time basis. A substantial criminal record is defined as including any person who has been sentenced to a term of imprisonment of 12 months. The definition of imprisonment is not an exhaustive definition. Imprisonment includes any form of punitive detention in a facility or institution. That extends the definition, but it also presumably includes any term of imprisonment. Generally, a term of imprisonment is a term of imprisonment whether it is actually served or not. I note some other unusual aspects of the legislation which add together concurrent terms for the purposes of the character test. See Section 501 sub-s.7(A). Two sentences of three months to be served concurrently would be counted as six months for the purposes of this character test.
73Presumably then, two concurrent sentences of six months or four concurrent sentences of three months or even 12 concurrent sentences of one month would be treated as a 12 month term and produce cancellation in a setting where there had not been a full time sentence of 12 months, as long as there was some time in custody and the person was in custody at the time of the cancellation. The provision is difficult to interpret. That is putting it mildly.
74Quite aside from these provisions which operate automatically, there are still the discretionary provisions which do not depend on any full time custody. See Section 501 sub-s.2. However, they are not automatic and it is impossible to know how the Minister would act in the exercise of the discretion provided by those provisions. That has always been the problem in the past in this area.
75It is clear from the cases that the prospects of deportation may sometimes be taken into account by a court. Whether it can be taken into account will depend on the nature of the evidence quantifying the risk and the effect. The prospect of deportation can obviously intrude upon the manner in which the sentence is served, increasing the hardship with the sizeable uncertainty as to the events which would unfold at the end of the sentence. Quite aside from that, deportation can clearly represent a significant penalty, namely the potential loss of prospect of settling in or remaining in this country.
76The only impediment to taking these matters into account has been the prohibition upon a court speculating and that arose as a result of the uncertainty before the amendments, as to the manner in which the Minister’s discretion would be exercised. That is, uncertainty as to the level of risk of deportation and/or the effect or impact. Speculation was and is not permitted.
77Now we are not dealing here with the risk of cancellation of a visa. That is a certain outcome if a term of greater than 12 months is imposed and you go into full time custody. That is the way I will construe the provision. The mitigatory considerations however attach to the risk of deportation and the impact of that matter. Now as I have said, the Court of Appeal discussed this amended provision in the case of Zhuang but seemingly did not reflect on the mandatory invitation the Minister must extend to the former visa holder, for reconsideration, and the power then to revoke the cancellation and failing that, the ability for the affected person to review that position. See Sections 501CA and 500.
78There is uncertainty in my mind as to whether the amended provision is triggered for any sentence of 12 months or more, irrespective of the actual time served as long as there is some time served or only for periods where greater than 12 months has been served. I presently favour the former view. Then, though there would be no uncertainty in terms of the cancellation of the visa, it must be cancelled, there is still no greater clarity in terms of the fact of deportation. Would you in fact be deported? There is the power to ask the Minister to reconsider the revocation under Section 501 CA 4.
79Now clearly the Minister could not be satisfied of your passing the character test under that provision, as failure in that region had triggered the cancellation, but he may revoke his original decision under Section 501 CA, sub-s.4 [b] ii, if there is another reason why it should be revoked. Now I could think of a long list of reasons. One would like to think that good sense and plain humanity or decency would cause serious and long thought before any decision was made to expel from this country, a married man who has been a permanent resident of this country for over 25 years, one with two children born in Australia as well as a company based here. If good sense did not prevail, and the decision was not revoked, then there is the power for you to review that non revocation under Section 500. The prosecution argue it is uncertain here as to what will happen, as uncertain as it always has been.
80Well I put myself into your position. I suspect sitting where you have sat hearing these arguments, you would not have been greatly comforted. You have heard two counsel and one Judge try to make head or tail of the provisions with no great success and precious little certainty. If I am right in my reading of the Act, there is the certainty of revocation of the visa, if you receive a term of 12 months or more and spend any time in custody. What will that cancellation produce? Well in the absence of some other visa being issued, it will presumably produce your being held in Immigration detention.
81As I sit here, your future is very uncertain. If I think that, how could you not? If my reading of the Act is correct, that is, if you were sentenced to a term of imprisonment of 12 months or more and are ordered to serve some portion of it, you can expect at the very least cancellation of your visa. That will not depend on discretion being exercised, but is produced automatically, and the writing is then on the wall. Whether the Minister then intervenes would involve me considering the exercise by another of a discretion, the sort of matters that previously the court would not have been free to consider in this area. How can I reach any view as the likelihood of revocation of the original decision? Once your visa is cancelled, you may well be a very short step away from an all-expenses paid one way trip to Christmas Island or more likely Korea. At the least, you would likely be detained in immigration detention whilst your position was finalised. How can these things not affect you?
82I have considered the many cases in this area including Guden, Peng, Valayamkandathiil, Yildirim and Zhuang. I have considered the terms of the legislation. There is in my view a real risk of deportation in this case and I take that into account as further increasing what would be the likely burden of custody and as producing a great uncertainty in your life during the service of any sentence, as well as after the completion of the sentence. There is the real risk that you would lose the opportunity to do as you have done for the last 25 years; live in your country of choice.
83Before leaving this vexed area, I observe that there are very many who seek to rely upon the prospect of deportation in pleas conducted before this court, in circumstances where they really should not. People who have had no real expectation to settle in this country, no true connection to it and a desire to leave it and return home once the court case is finalised. For instance, the common enough scenario of a part time foreign student visa holder leaving study behind, reneging then on the terms of the visa that brings them into the country and engaging in cannabis cultivations for instance, within a short space of time of first entering the country.
84There is no question as to what will happen, no question of loss of opportunity and very often a strong desire to return home. Still people such as that roll out the risk of deportation on the plea. On the other hand, there is someone like you. You and your family have a solid and longstanding connection to this country and would feel the loss heavily. I am prepared to take all of these matters into account in mitigation. However, it is no part of my function to structure a sentence in such a way as to circumvent the operation of the provisions.
Principles
85Your counsel concedes that general deterrence is still an important sentencing consideration here. He argues that given the very lengthy delay, there can be some reduction in the weight given to general deterrence, and that specific deterrence has already been achieved.
86It is clear that in a case such as this general deterrence is important. That is still so despite the delay, though I am far from happy to be dealing with you so long after the event and so long after the interview where you made admissions.
87The potential risk posed by such conduct as yours was far reaching. We are secure from many exotic diseases such as foot and mouth. We have had had outbreaks now and then of some of the other diseases spoken of, but they have been controlled and eradicated. Rural or primary production is a large component of this country’s economy. We pride ourselves on our ability to export to other markets. It is the lifeblood of many industries. The impact of the outbreak of foot and mouth disease is potentially catastrophic, not just to the animals. There is the potential impact upon literally thousands, if not tens of thousands of people in the community, who directly or indirectly, are either linked to such industries or to people who may be affected.
88This was serious offending and as Operation Hayride disclosed, there were many prepared to flout the law for commercial gain. That is all it was, for gain. The scale was very large. This was not someone bringing back in a suitcase with a few bits and pieces of food for personal consumption. This was a large quantity imported on six occasions.
89I am required to impose sentences or make orders that are of a severity appropriate in all the circumstances of the offence. I take into account the relevant matters referred to in s.16(A)(2) of the Crimes Act 1914 (Cth) as well as the matters picked up on a Commonwealth basis, but not specifically mentioned, for instance general deterrence.
90I have looked at the cases to which I was referred. No two cases or offenders are ever the same. Some had obvious differences including a provision with a two year maximum at play. Some had far fewer transactions or substantially less product. Of course most cases had far less delay. Most if not all of them, had an accused with no prior convictions, a man (or woman in one case), of excellent character and background, such as you.
91There were a number that were very similar. The case of Mark Kim dealt with in the District Court of Queensland had six importations of almost the same quantity of product, with a similar value. It did not have delay, but had the very powerful mitigatory factor of the assistance and cooperation of great value that was rewarded with a sizeable declared discount. Kim received two years and 11 months with the service of six months before release on a recognisance release order. The Judge said that but for the assistance, there would have been a sentence of around four and a half years, with a period of about one third to serve.
92The case of Hong Kim had similarities as well, five importations and one possession charge (plus some other charges connected to documents), 20 tonnes as opposed to 15 in your case, some assistance and increased custodial burden produced by some psychological issues. Again, there was not the delay, he was dealt with in May 2013, but received 39 months with release after nine months. The methods employed in these two cases were almost identical to yours.
93Finally, the case of Ji Kim dealt with in the District Court in NSW in January 2014 for offending occurring in January 2011. It was a smaller number of importations, but of an amount of 16 tonnes. She suffered from depression and anxiety and had a four year old child and did not escape an immediate term, receiving two and a half years with release after seven months.
94I have read all of the cases where a transcript or reasons exists. I note also the later cases of Yi dealt with in Victorian County Court after a comparable delay, but for a far smaller quantity. He avoided an immediate term receiving 16 months. Also, the case of Park (NSWDC) where the delay was comparable and a three year term was imposed with release forthwith. It is difficult to gauge the quantity imported there, though there were less charges.
95The prosecution argue that you must be sent to prison immediately, so serious is the offending and so strong the need to adequately reflect the principles of general deterrence. Actual imprisonment is required they argue because of the repeated nature of the offending, the quantity imported, the use of the false documents and the need for consistency in sentencing.
96Your counsel accepts that it is necessary to impose a prison term, but argues for an outcome where you are released immediately by way of a recognisance release order. He argues that such an outcome is open, owing to the many mitigatory matters and particularly because of the inordinate delay.
97I have taken into account all of the submissions made and the exhibits tendered on the plea and have taken into account the matters required within Section 16A sub-s.2. Prison is always a disposition of last resort. If I can avoid such an outcome in the sound exercise of my sentencing discretion, then of course I must. Your counsel concedes the inevitability of a prison term. It cannot be avoided and I agree. Nor in my judgement in the ordinary course of events could you hope to avoid a sizeable immediate term of imprisonment, given the scale of the offending. But there is something that is not ordinary in this case. It is the delay. There is something patently unfair about your being reeled in years after the event, years after the last importation and years after you made admissions. The delay is totally unacceptable. I believe it sets this case apart from many other cases and does justify an approach that would not in normal circumstances be open to the court. I will ask you Ms Thompson if I am complying with the legislative framework once I announce what I propose.
Sentence
98I will have you remain seated while I pass sentence upon both you and the company.
The Company
99Firstly as to the company, on Charge 1 the company, that is ICETOTO PTY LTD is convicted and fined $7,000. So too on Charges 2, 4 and 5. In each instance, the company is convicted and fined $7,000. On Charge 3 and Charge 6, the company is convicted and fined $2,500 on each charge. This produces a total of $33,000.00 imposed by way of fines upon the company. I will consider giving time to pay and leave to the Director to apply to the court for appropriate orders if the fines are not paid.
Mr Cho
100On each of Charges 7, 8, 10 and 11, I convict and sentence you to 30 months or two and a half years imprisonment. On Charges 9 and 12, in each case, I convict and sentence you to 14 months imprisonment. These sentences will all run concurrently and will all commence today.
101In addition, on each of Charges 7, 8, 10 and 11, I convict and fine you $6,000.00. On Charges 9 and 12, on each charge, you are convicted and fined $2,000.00. That is a total then of fines against you of $28,000.00. Again I will consider giving time to pay and leave to the Director to apply for appropriate orders if the fines are not paid.
Recognisance Release Order
102Pursuant to s.20 (1)(b) of the Commonwealth Crimes Act 1914, I propose to order that you be released from the Commonwealth sentence forthwith, that is immediately, upon giving security in the sum of $5,000.00 to comply with the following conditions,
(a) That you be of good behaviour for the four years following your release on this recognisance.

103Let me just satisfy myself that it complies with the legislative framework and I am specifying the conditions that should be specified. Ms Thompson, I'm aware that there's an arrangement in existence that Corrections can become involved in these sort of matters, but is there any impediment to me simply, as I would have previously done, fixing the recognisance with the one condition that he be of good behaviour for the period of it?
104MS THOMPSON: That satisfies the requirements just with that one condition, Your Honour.
105HIS HONOUR: Yes. All right, now I will come back to - I have not forgotten s.6AAA, but then do the orders that I have pronounced, do they accord with the actual statutory framework?
106MS THOMPSON: Yes I believe they do, Your Honour.
107HIS HONOUR: Yes, all right thank you. Will you then prepare that document then?
108MS THOMPSON: I will.
109HIS HONOUR: Thank you. I am obliged to explain to you the effect of this order. Think of it as a suspended sentence and you will not be going far wrong. You are going to be released immediately. You will have the two and a half year sentence over your head for the next four years.
110Now I am required to tell you that there is a power to apply to the court to vary or discharge the recognisance or promise, but having said that, it is very much a theoretical thing in a case such as this it seems to me. I cannot at the moment imagine any circumstances in which I would grant such an application, given the seriousness of the matter.
111So this is your promise to be of good behaviour for the next four years. Should you commit any further offence or be of bad behaviour in that four year period, well of course you would not be of good behaviour and you would breach this promise. In those circumstances, you would forfeit the sum of the recognizance or promise which is $5,000.00. More significantly though, you would be brought back before me in breach of this order.
112Now a court in such a setting as that has a variety of options to consider. Doing nothing, extending the period, imposing a fine or revoking the order and ordering that you be dealt with in some other way or ordering that you serve the period of imprisonment held in suspense, so two and a half years. I would of course consider what was being raised before me at the time of any breach proceedings, but you should work on the basis of there being a real likelihood of your being ordered to serve that term of imprisonment, that is, 30 months if you are foolish enough to breach this order.
113So you indicate there Ms Thompson that that satisfies at least the legislative framework. There is nothing I have said that should not be said? I have said what needs to be said to satisfy the framework within the legislation?
114MS THOMPSON: Yes, Your Honour.
115HIS HONOUR: Yes. All right, well those orders then that I have announced are formally pronounced by me. I do not see the need to restate them.

Section 17A
116As is clear from my reasons to date, given the seriousness of your offending, I do not believe there is any other option but to impose a term of imprisonment in this case. So I make a declaration pursuant to s.17A of the Crimes Act 1914, and that is to be entered in the records of the court.
117I want to make one thing very plain to you and not just to you, but to others who might seize upon this decision and cite it back either to me or to other Judges in the future, as to the sort of sentence available for this style and scale of offending. It stands for no such proposition. The ultimate outcome in this case is a most unusual one and is very much driven by the inordinate delay, the effects of that delay, in combination with the other mitigatory matters in this matter. Had there not been the most unfortunate delay in this matter, had you for instance been dealt with in a timely fashion as for instance Mr Mark Kim was dealt with, it would have clearly been necessary to impose higher individual sentences.
118More significantly, there is simply no way you could have avoided a sizeable prison term to actually serve before being released on either a recognisance release order or for that matter, parole. However, given the delay, I believe it is within the sound exercise of my discretion to exercise significant leniency and to exhibit a measure of understanding and a flexible approach as spoken of in some of the delay authorities that I have referred to.
119Ms Thompson, is that recognisance release order ready?
120MS THOMPSON: Yes it is.
121HIS HONOUR: Let me just have a look at that, thank you. Yes, all right. Are you satisfied that I have adequately explained the purpose and the effect of the order and the consequences flowing upon any breach?
122MS THOMPSON: Yes, Your Honour.
123HIS HONOUR: Yes, all right. I will have that come down. Mr Lee, just look at that. I think it clearly mirrors my stated intention. If it does, I will have it go down with my associate to be signed. But you go down and just explain. If anything needs to be explained or any questions your client has, he is to ask them now, all right? But go down with my associate and - - -
124Mr Cho, just remain seated. Do you confirm that you have signed this Commonwealth Recognisance Release Oder?
125OFFENDER: Yes.
126HIS HONOUR: Do you understand that the requirement is that you be of good behaviour for the next four years?
127OFFENDER: Yes sir.
128HIS HONOUR: And do you understand the consequences if you breach this order?
129OFFENDER: Yes sir.
130HIS HONOUR: One of those consequences obviously is that you would have to pay the amount of $5,000.00 which is the amount of the promise. The other is there is a real likelihood that this order would be cancelled or revoked and you would serve everyday of that 30 months.
131OFFENDER: Yes sir.
132HIS HONOUR: Do you understand?
133OFFENDER: Yes.
134HIS HONOUR: Yes, all right. Well I have signed the order as well. Can you get him to sign, that is all.
Section 6AAA
135I told you that you have received a benefit because of your guilty plea. Had you been found guilty of these offences following a contested trial, I would have sentenced you to four and a half years' imprisonment, with a release mechanism permitting your release after the service of two years and nine months imprisonment.
136That statement is to be entered into the records of the court. Now Ms Thompson, what do I do in terms of - I am not sure I have ever actually imposed a fine on a Commonwealth matter on indictment, but in terms of time to pay, both for the company and for the individual and the arrangements if there is not payment. What do I do?
137MS THOMPSON: It's open to Your Honour to allow a stay, just as you would in a case of a State fine, Your Honour.
138HIS HONOUR: I saw reference in some of the other cases to granting leave for the Director to apply for appropriate orders if the fines are not paid. I did not quite know what people were referring to there. What do you say I need to do, just simply impose a stay or not?
139MS THOMPSON: Simply impose a stay and if the fines aren't paid within the period of the stay, then the enforcement provisions under the State Sentencing Act are picked up and the Sheriff becomes involved. Similarly, there's the opportunity for Mr Cho, on his own behalf and on behalf of the company to for example, seek an instalment order or to seek additional time to pay.
140HIS HONOUR: I see, all right. Mr Lee, are you asking for some time to pay or not?
141MR LEE: Yes, Your Honour. I have sought instructions from Mr Cho and we submit for a stay of at least six months.
142HIS HONOUR: All right, I will give you what you are asking. I will give you a stay of six months, yes, both in terms of the company and in terms of the individual fine. So there's a stay of six months.
143MS THOMPSON: There's just one - - -
144HIS HONOUR: Yes.
145MS THOMPSON: - - - query I have, Your Honour. Whether Your Honour intended to give a s.6AAA indication in respect of the company as well?
146HIS HONOUR: It's a total fiction as far as I'm concerned. I probably have to do I? It's probably required under the Sentencing Act because it's a fine greater than $1,000.
147MS THOMPSON: A fine, yes. There's some difference of opinion as to whether that is picked up in Commonwealth cases, but I think it's accepted by most Judges that it is and because it is a fine of over $1,000.00, then s.6AAA is - - -
148HIS HONOUR: Well I've made a s.6AAA declaration in terms of the individual.
149MS THOMPSON: Yes.
150HIS HONOUR: So I suppose I had better in terms of the company. Mr Cho, I have told you that I have taken into account your guilty plea and passed a lesser penalty, and I have told you the penalty I would have imposed upon you, had you run a trial and been found guilty personally.
151The same concepts apply in relation to the company and the fines imposed upon the company. Had the company pleaded not guilty, and been found guilty of this offending, I would have imposed fines totalling $100,000.00. I do not see the need to break them down into individual fines, Ms Thompson.
152MS THOMPSON: No, I don't think there's any requirement for that, Your Honour.
153HIS HONOUR: Yes, all right. Now, having picked me up on that, is there anything else that I've overlooked?
154MS THOMPSON: I don't believe so. No, Your Honour.
155HIS HONOUR: All right. Well that completes the matter at least as far as I'm concerned. The details, who are those fines - the computer always says who are they payable to. What do we tell the computer Ms Thompson?
156MS THOMPSON: Now the current name of the department, it's the Department of Agriculture - could I perhaps email those details through to your associate this afternoon?
157HIS HONOUR: Yes, yes of course you can.
158MS THOMPSON: Rather me guessing now. If I could get accurate details and email those through.
159HIS HONOUR: Yes, that's fine, yes. All right, no other matters that I need to deal with?
160MR LEE: No, Your Honour.
161HIS HONOUR: All right, well that completes the matter. Thanks very much Madam Interpreter.
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[2015] VCC 1697

20 November 2015